Delhi District Court
Fir No. 259/2016 State vs . Uttam Kumar Dass & Ors ; Ps GkI 1 Of 20 on 13 November, 2018
Ms. Sheetal Chaudhary Pradhan, Metropolitan Magistrate
(Mahila court (SouthEast), Saket Courts, New Delhi.
FIR No. 259/2016
PS: GKI
U/s : 354C/509/34 IPC
State v. Uttam Kumar Dass & Ors
JUDGMENT
Date of institution : 11.07.2017 Cr.C No. : 17041/2017 Name of the complainant : As per charge sheet.
Name & address of the accused: 1. Uttam Kumar Dass
persons S/o Jal Dhar Dass
2. Partho Dass
S/o Uttam Kumar Dass
3. Pankaj Dass
S/o Uttam Kumar Dass
All R/o H.No. M69, GKI,
New Delhi.
Offence Complained of : U/s 354C/341/337/34 IPC
Offence Charged of : U/s 354C/509/34 IPC
Plea of the accused persons : Pleaded not guilty.
Final Order : Acquitted
Date of arguments : 12.11.2018
Date of announcing of order : 13.11.2018
FIR No. 259/2016 State Vs. Uttam Kumar Dass & Ors ; PS GKI 1 of 20
BRIEF FACTS:
1. Brief facts of the case which are stated by the complainant in her complaint are that during her stay between July 2015 till May 2016 she was subjected to behavior that would outrage her modesty. The caretaker of the tenanted premises i.e. Uttam Kumar Dass would take advantage of a broken window to the bathroom which the complainant had requested him to fix. After dismissing the first instance as a mistake, accused kept making excuses and repeated the behavior. The first incident occurred in the end of July 2015 in the early morning and the last time it had taken place was in MarchApril. The aforesaid act was usually lecherous. Accused Uttam Kumar Dass alongwith his son namely Partho Dass and Pankaj would get drunk and create nuisance till late night and play loud music with their friends. They would run around in their underwear and the same happened in September 2015 and November and December 2015 and also in January 2016. Accused persons would get drunk and the same would be intimidating the complainant. In the absence of landlady whose name was Mrs. Sethi and lived in London, the accused persons used the property for illegal activities and the accused persons were known to have brought sex workers to the residence and the same was observed by the complainant around September 2015. Despite to the request of the complainant, the work of plumber in the bathroom of the complainant was not done because of which FIR No. 259/2016 State Vs. Uttam Kumar Dass & Ors ; PS GKI 2 of 20 she fell down and broke her wrist in February 2016. Complainant was threatened to evict the premises if she did not pay more than the share for electricity bill and the same had happened several times between September 2015 and January 2016. In JulyAugust 2016, the accused persons would willfully block the entry to the house of the complainant and fight. Despite several requests, the accused persons did not share the number of landlady and had stopped taking calls of the complainant. Due to the aforesaid reasons complainant was forced to leave the house.
2. Pursuant to this complaint dated 11.09.2016 against the accused for the incidents between July 2015 till May 2016, FIR was registered on 11.09.2016 and the matter was investigated. Charge sheet was filed on 11.07.2017. The Court took cognizance of offence and summoned the accused persons. Charge was framed against accused persons vide order dated 16.03.2018 for the offence punishable U/s 354C/509/34 IPC. Accused persons pleaded not guilty and claimed trial and accordingly, prosecution evidence was lead.
3. In order to prove its case, prosecution has examined Three (03) witnesses during trial.
PW1 ASI Sukhvir Singh (Duty Officer) deposed that on 11.09.2016 upon receiving rukka Ex. PW1/B he registered the FIR vide Ex. PW1/A. FIR No. 259/2016 State Vs. Uttam Kumar Dass & Ors ; PS GKI 3 of 20 Opportunity to cross examine the witness was granted to the accused persons but they did not question anything to the witness.
PW2 complainant (as per charge sheet) deposed that she was residing at rented house situated at M69, G.K.I, 2 nd floor, New Delhi from June 2015 to May 2016. The aforesaid rented accommodation was given by accused Uttam Kumar Dass for taking care of the premises by owner of the house Mrs. Sethi . At the end of July 2015 she noticed that window of bathroom of her aforesaid rented accommodation was not properly functioning and she had made several requests to accused Uttam Kumar Dass who was caretaker of the rented accommodation to get repair the window so as to shut the window of bathroom properly but he did not take any heed and did not get repaired the window. At the end of July 2015 while she was bathing in her bathroom she noticed that accused Uttam Kumar was found standing on the terrace and he was seeing towards her bathroom through the aforesaid window which was deliberately not got repaired by him. The said incident happened twice or thrice between end of July 2015 to March 2016. Accused Uttam Kumar Dass used to stand on terrace from which her bathroom was visible and he used to talk with his sons namely Pankaj Dass and other who were running a shop at ground floor of building and she objected the same at several times to accused Uttam Kumar Dass but he did not stop to do the same. Both sons of accused Uttam Kumar Dass used to come at FIR No. 259/2016 State Vs. Uttam Kumar Dass & Ors ; PS GKI 4 of 20 her house in drunken condition and they used to shout from the terrace which create nuisance to her. Older son of accused Uttam Kumar Dass used to ask for extra electricity bill and water bill and at time his behavior was very threatening towards her. When she requested accused Uttam Kumar Dass and his both sons to provide mobile phone of the landlord of rented accommodation but they did not provide her and told her that they are landlord of premises. On one occasion she had sustained injury in her bathroom as flush of bathroom was broken and for which she had made several requests to get it repaired to accused Uttam Kumar Dass and his elder son Partho Dass but they did not get repaired the same. Both son of accused Uttam Kumar Dass namely Pramod Dass and Partho Dass used to run around the premises in drunken condition alongwith their friends and their friends were semi naked condition. Finally, in first week of June 2016, she left her aforesaid premises due to aforesaid behavior of accused persons and they forced her to vacate the premises even after she made request to them for taking some time as at that time her hand was fractured. Thereafter, she filed the present complaint to police, same was Ex.PW1/A. She had shown place of occurrence to police who prepared site plan at her instance. Her statement U/sec 164 Cr. P. C. was Ex.PW1/B. She had given photocopy of rent agreement of aforesaid premises executed between her and FIR No. 259/2016 State Vs. Uttam Kumar Dass & Ors ; PS GKI 5 of 20 accused Uttam Kumar Dass as a lessor on behalf of Mrs. Bimla Devi which was MarkA. During crossexamination PW2 deposed that she was BA in Economics. At the time of incident, her office timings were between 02:30 PM to 11:30 PM in the night. It was correct that when she took the property on rent, she had taken a service of property dealer but she did not remember the name today. It was correct that the name of the property dealer was Bhuvnesh. She had the taken the property on rent since she was assured by the property dealers that her problems narrated to him would be taken care. It was correct that the property in which she shifted was painted before her taking its possession. It was correct that there was a document executed by her with the landlord pertaining to fitting and fixtures also apart from the rent agreement. She had not given any notice in writing to landlord once she found that certain fitting and fixture missing through narrated in the documents signed by her. However, she had told them verbaly. It was correct that the house were situated in a residential area and was thickly populated and some of the houses had its balcony over looking hers. It was correct that accused Uttam Kumar Dass used to have a shop on the ground floor of the said premises which he used to manage on his own alongwith his son. It was wrong to suggest that accused Partho Dass and Pankaj Dass never used to sit on the aforesaid shop with accused Uttam Kumar Dass.
FIR No. 259/2016 State Vs. Uttam Kumar Dass & Ors ; PS GKI 6 of 20 She had informed regarding the problem faced by her to the broker however, it was quite late and he refused to intervene or help her. She did not remember the date on which the FIR was registered. She had never filed any criminal complaint against any person prior to the present complaint. She went to the PS late evening to file her complaint with the police. PW2 was shown her complaint Ex. PW2/A. It was correct that incident of peeping inside her window started in the year July 2015. It was correct that there were other tenants also who were residing in the said premises. She was not sure if the house was also rented to the person namely Ashish Chopra, however it was correct that it was rented out to a family which consisted of one man, his wife and mother. She did not mention regarding the acts of the accused to the aforesaid family members. She did not give a call at 100 number when the incident occurred for the first time. She did not ever give a call at 100 number when any such incident or behaviour of the accused took place. It was correct that present complaint Ex. PW2/A was her first complaint ever made to the police in this regard. It was correct that she did not inform regarding her intention to vacate the rented premises to the landlord in advance. It was correct that after the lodging the FIR, she was further inquired by the police officials and they recorded her statement. It took at least one hour to record her statement. It was correct that IO accompanied her to the place of incident and FIR No. 259/2016 State Vs. Uttam Kumar Dass & Ors ; PS GKI 7 of 20 inspected the point where the incident had taken place at her instance. It was correct that she specifically had shown the window of bathroom also and the place from where accused Uttam Kumar watched her inside the bathroom. She did not remember when was she taken for statement before Magistrate but it was soon after filing of the FIR. She did not share about these incidents with any of her closed friends. Her allegations in respect of accused persons drinking, playing loud music at the dead of night, running in their undergarments etc. etc were brought to the knowledge of a tenant living in the first floor of the same premises. She did not remember his name. She used her right hand for writing. It was correct that she had for the first time said the fact that "at the end of July 2015 while I was bathing in my bathroom, I noticed that accused Uttam Kumar was found standing on the terrace and he was seeing towards my bathroom through the aforesaid window which was deliberately not get repaired by him. The said incident was happened twice or thrice between end of July 2015 to March 2016". It was correct that in her 164 Cr. P. C statement Ex. PW1/B, there was no such statement that accused Uttam Kumar watched her bathing through the broken window and the witness was confronted. She did not show any documentary evidence in respect of her broken hand to the IO. It was correct that in her statement Ex. PW1/B she has FIR No. 259/2016 State Vs. Uttam Kumar Dass & Ors ; PS GKI 8 of 20 referred to "house help and boy living downstairs" but their names have not been given by her.
PW3 WASI Urmila (IO of the case) deposed that on 11.09.2016, she was posted as ASI at PS G.KI. On that day, the present case was marked to her for investigation through concerned SHO. She served two notices to the complainant for getting her statement recorded u/s 164 Cr.PC through Ld. MM as the complainant did not want to meet her and also did not support the investigation. The said notices were Ex.PW3/A and Ex.PW3/C. Thereafter, she called through her phone to the complainant in the Court and complainant came thereafter, the statement of complainant u/s 164 CrPC was got recorded. Thereafter, she served a notice u/s 41 (A) CrPC to join the investigation to the accused persons namely Uttam Kumar, Pankaj Dass and Partho Dass, said notice was Ex.PW3/B. Thereafter, the above said accused persons joined the investigation and she interrogated them and recorded the statement of the witnesses u/s 161 CrPC. After completion of investigation, she prepared the charge sheet and filed it before this Court.
During crossexamination PW3 deposed that she was in the police department for last nearly 28 years. When she took up the investigation, she had gone through the contents of the First Information Report. Upon seeing Ex.PW2/A, she admitted that no FIR No. 259/2016 State Vs. Uttam Kumar Dass & Ors ; PS GKI 9 of 20 specific date and time of alleged incident was written. She questioned the first informant to ascertain the contents of her allegations but she failed to provide her any documentary evidence in that respect. During the course of investigation, she visited the site of incident. It was correct to say that she had not mentioned regarding the same earlier. When she visited the spot, the complainant was not there as she had vacated the premises. She inquired from the people staying in the surrounding area about the allegations of FIR. She was also told that they were not aware of any such incident. She had met Madhu Ahluwalia, Sewa Ram and one Rajan whose statement u/s 161 CrPC were recorded by her. It was correct that where the incident was alleged to have taken place was in a thickly populated residential area. It was also correct that people in the surrounding area would be able to watch anything happening in the terrace. It had never come to her knowledge that the accused persons would create ruckus at night time. It was also correct that during the course of investigation, she did not come across any evidence or witness that would suggest that loud music was played by accused persons at night. It was correct that since the first informant was not cooperating to give her 164 CrPC statement the date was changed. Upon seeing Ex.PW3/D2 witness stated that she can not tell from the site plan as to where the accused persons used to watch the complainant when she was in her FIR No. 259/2016 State Vs. Uttam Kumar Dass & Ors ; PS GKI 10 of 20 washroom nor could she say that where that window was located. The witness stated that the photocopy of lease agreement filed on record was provided to her by the accused persons. She did not prepare any memo in respect of this document. It was correct that after serving notice u/s 41A CrPC the accused persons fully cooperated in the investigation. Witness denied all suggestions put to her.
4. Thereafter, prosecution evidence was closed and statement of accused was recorded U/s 313 Cr. P.C wherein all incriminating evidence was put to accused. Accused denied the allegations of prosecution as false and pleaded false implication.
5. Accused examined one (01) witnesses in his defence.
DW1 Partho Dass (accused u/s 315 CrPC) deposed that the complainant had taken on rent one room accommodation at M69, Second Floor, GK1, New Delhi from his father (accused Uttam Kumar Dass) who was the caretaker of entire property bearing No. M69. Complainant visited their place with one property dealer namely Bhuvnesh and saw the premises and after being satisfied, took the same on rent. The lease agreement was signed between his father and complainant and lease agreement was Ex. DW1/1. The agreement for fitting and fixtures and furnitures was Ex. DW1/2. His father told him in July 2016 that complainant was defaulting in payment of rent. By August 2016 there was accumulation of rent of Rs. 40,000/ to Rs. 45,000/on FIR No. 259/2016 State Vs. Uttam Kumar Dass & Ors ; PS GKI 11 of 20 the complainant and upon the asking of his father, he made a telephonic call to the complainant to make the balance payment but complainant every time assured of making the payment but did not pay the same. In September 2016 complainant secretly vacated the premises and despite request did not pay the amount due.
During crossexamination DW1 deposed that the owner of the premises M69, GKI was Bimla Devi. He has not brought any document to suggest that the owner of the property was Bimla Devi. It was correct that Ex. DW1/1 had signatures of accused Uttam Kumar and complainant only on the first and last page and not on each pages. Further it was correct that document Ex. DW1/2 had signatures of complainant and DW1 only on the last page and both the aforesaid documents had the typed portion starting from the Non Judicial Stamp Paper. Witness denied all suggestions put to him.
6. Ld. APP for the state has argued that in the present matter all the witnesses have corroborated the story of the prosecution and there is no contradiction in the testimony of the witnesses and therefore accused persons are liable to be convicted for the offences charged. He has also argued that there is complete corroboration in the testimony of PW2. He has also argued that the accused persons on several previous occasions had seeing the FIR No. 259/2016 State Vs. Uttam Kumar Dass & Ors ; PS GKI 12 of 20 complainant from her bathroom window while she was in a private act and therefore, accused persons are liable to be convicted for the offences.
7. However, on the other hand, Ld. Counsel for accused persons have argued that in the present matter the alleged incident are stated to have taken place between July 2015 to May 2016 and the complainant first time ever filed her complaint to the police only on 11.09.2016 which itself shows that the complaint filed by her is delayed and belated. Further, the complainant had admitted that she left the rented premises of M69, G.K.I in the month of June 2016, even than she had not explained the reason for filing the present complaint only on 11.09.2016 and the aforesaid delay has not been satisfactorily explained. It is also argued that the complainant has not stated the exact date, month or year of the alleged incidents and has given different dates and months for the alleged incidents and the same shows that the complainant is not a reliable witness and the allegations are vague and bereft of details. It is also argued the prosecution has failed to prove the guilt of accused persons beyond reasonable doubt and further the investigation in the present matter has not been conducted with due diligence. It is also argued that though the IO examined witness Madhu Ahluwalia, Rajan and one Sewa Ram as witnesses and recorded their statements u/s. 161 Cr.PC, however, none of the aforesaid FIR No. 259/2016 State Vs. Uttam Kumar Dass & Ors ; PS GKI 13 of 20 witnesses were cited as prosecution witnesses since they did not support the story of prosecution and had stated in favour of the accused persons. It is also argued that apart from the complainant no other public witness had been examined by the prosecution who could support the version of the complainant, despite the fact the complainant has stated that in the premises where she was residing, there were other families also present and staying. It was also argued that though the complainant fails to narrate even a single incident when the accused persons committed an act with the intention to outrage her modesty by seeing the complainant in the private act in her complaint Ex.PW2/A or in her statement recorded u/s. 164 Cr.PC Ex.PW2/B, she narrates the same during her examination in chief. It is also argued that though the complainant has stated that the site plan was prepared at her instance and during her crossexamination has also stated that she had shown the broken window of the bathroom to the investigating officer, PW3 who is the IO of the matter has stated contradictory. PW3 has stated that the complainant did not accompany her when the site plan was prepared and the same was made by her, on her own. It has also been argued that PW3 has stated during crossexamination that the site plan Ex.PW3/D1 does not depict the place where the accused persons would stand and watch the complainant from the window of her bathroom and the same does not depict FIR No. 259/2016 State Vs. Uttam Kumar Dass & Ors ; PS GKI 14 of 20 the place where the window was located. It is argued that the investigation of the present matter has not been conducted in a fair and proper manner and the accused persons have been falsely implicated since it was the complainant who defaulted in making payments of rent and vacated the premises without giving any intimation to the accused persons and when they demanded the balance amount of rent, they were falsely implicated by the complainant after a lapse of two years of the alleged false incidents. It is also argued that the complaint is vague and the allegations are fanciful and do not inspire confidence and therefore, accused persons are liable to be acquitted. Further, despite the fact that the alleged place on incident was a thickly populated residential area, none of the public persons were examined the prosecution. Further, the complainant did not make a call at 100 number whenever the alleged incidents took place and therefore the allegations of complainant are not substantiated by any cogent evidence and therefore accused persons are liable to be acquitted.
8. Ld. Counsel for accused has relied upon the judgment in the case of "A. Shankar Vs. State of Karnataka 2011 (6) SCC"
stating that delay in lodging of FIR is not explained is fatal to the veracity of witness. In "Krishan Singh Vs. Gurpal Singh & Ors. 2010 IV AD (Crl.) (SC) 233 "Further, prompt an early FIR No. 259/2016 State Vs. Uttam Kumar Dass & Ors ; PS GKI 15 of 20 reporting of occurrence by the information with all its vivid details gives an assurance regarding truth of its version. In case there is some delay in filing of the FIR, the complainant must give explanation for the same. Undoubtedly, delay in lodging the FIR does not make the complainant's case improbable when such delay is properly explained. However, deliberate delay in lodging the complaint is always fatal". He has also relied upon the judgment in the case of "Dr. Sunil Kumar Shambhu Dayal Gupta and Ors Vs. State of Maharashtra, JT 2010 (12) SC 287" that any discrepancies, omission of vital nature and magnitude so as to affect the trial are contradictions/ discrepancies which lead to disbelieve the witness. He has also relied upon the judgment in the case of "State of Haryna Vs. Ram Singh 2002 (1) JCC 385" that evidence tendered by defence witnesses cannot always be termed to be a tainted one, the defence witnesses are entitled to equal treatment and equal respect as that of prosecution. The issue of credibility and trustworthiness ought to be attributed to the defence witnesses at par with the of the prosecution.
Court Observation:
9. After having carefully perused the evidence on record and considered the rival contentions of the state as well as defence counsel, this court has come to the following conclusion:
FIR No. 259/2016 State Vs. Uttam Kumar Dass & Ors ; PS GKI 16 of 20 In the present matter, prosecution examined as many as three witnesses among which PW1 is the duty officer, PW2 is the complainant and PW3 was the IO. PW2 is the star witnesses of prosecution being the victim herself and all remaining witnesses examined by the prosecution were formal in nature. However, if we carefully peruse the complaint Ex.PW2/A, statement of PW2 recorded u/s 164 Cr.PC and her testimony before the court, there are glaring contradictions and no corroboration. Further, there is vast improvement in the testimony of the complainant and the complainant has failed to even narrate the manner in which the incidents occurred and has not even stated if on the alleged date of incidents, she made a call at 100 number or made any written complaints to any authority. PW2/complainant has admitted during her crossexamination on behalf of accused that the house in which she was residing had other tenants, however, she had never narrated any of the alleged incidents, when the accused persons misbehaved with her to any person and she did not raise alarm. She further stated that the accused persons had misbehaved with her on several occasions, however, none of previous occasions or such incident were mentioned or explained by the complainant. She did not remember the dates of any of incidents upon which accused had misbehaved with her on earlier occasion. During crossexamination, PW2 has admitted that prior to 12.09.2016 she had not made any complaint in writing to the FIR No. 259/2016 State Vs. Uttam Kumar Dass & Ors ; PS GKI 17 of 20 police and therefore, the aforesaid averments are false and do not find credibility. She also admitted that she had not mentioned the date of incidents even in her statement recorded u/s. 164 Cr.PC.
10. Further, PW2 has only made vague allegations of the incident while she was residing in the tenanted premises but has failed to substantiated any of the allegations against the accused persons and has not led any cogent evidence. During investigation IO had already admitted that despite efforts no person supported the story of the complainant and the witnesses namely Madhu Ahluwalia, Rajan and Sewa Ram did not support the complainant's version and therefore, false implication cannot be ruled out.
11. In the present matter, accused persons have been charged for the offence u/s 354C/5089/34 IPC, however, none of the ingredients of the aforesaid offences have been proved by the prosecution against the accused persons.
12. In the present fact and circumstances, accused persons cannot be held liable for causing the offence of outraging the modesty of the complainant or of abusing the complainant.
13. The improvement in the version of PW2 are crucial as Ex.
PW2/A is a hand written complaint admittedly prepared by her after two years from the alleged date of incidents and there is no justification or plausible ground as to why the complainant was FIR No. 259/2016 State Vs. Uttam Kumar Dass & Ors ; PS GKI 18 of 20 unable to narrate the incident explicitly or elaborate upon the details particularly when the same has been written when the complainant was not under immediate shock. The very fact that the complainant did not mention about the aforesaid facts in detail during her statement Ex.PW2/A or Ex.PW2/B, itself shows that the complainant has leveled false allegations against the accused persons. Further, the allegations of watching the complainant in her private act with the intention to outrage her modesty are also not sustainable as the same are completely vague and do not inspire confidence. The complainant has leveled general allegations against the accused and the same are devoid of merit as the complainant has not explained the same even during her statement recorded u/s 164 CrPC. Further, the story of the complainant cannot be believed as she herself has admitted during her crossexamination that at the place of incident, there were several public persons but none was examined by prosecution. Therefore, there was nothing to lend support to the testimony of PW2 apart from bald averments made in the complaint and her testimony before the court. Therefore, it can be safely concluded that the guilt of the accused persons have not been proved beyond reasonable doubt.
14. In view of the above discussion and considering the material, available on record, the guilt of the accused persons are not proved beyond reasonable doubts. Therefore, accused Uttam FIR No. 259/2016 State Vs. Uttam Kumar Dass & Ors ; PS GKI 19 of 20 Kumar Dass, Partho Dass and Pankaj Dass are acquitted for the offences U/s 354C/509/34 IPC.
Announced in the Open Court (Sheetal Chaudhary Pradhan)
on 13.11.2018 Metropolitan Magistrate02
(Mahila Court), SouthEast,
Saket, New Delhi.
Digitally signed
by SHEETAL
SHEETAL CHAUDHARY
CHAUDHARY PRADHAN
PRADHAN Date:
2018.11.14
12:08:06 +0530
FIR No. 259/2016 State Vs. Uttam Kumar Dass & Ors ; PS GKI 20 of 20